A city ordinance that prohibits parking mobile billboards on public streets, but exempts authorized emergency or construction-related vehicles, is a content-based regulation subject to strict scrutiny, the U.S. Ninth Circuit Court of Appeals held earlier this month. The court sent Boyer v. City of Simi Valley back to the district court to be analyzed under strict scrutiny — a narrow test to ensure a law does not discriminate. The decision reversed the district court's ruling that the City of Simi Valley's ordinance was content-neutral and a reasonable time, place and manner restriction permitted under the First Amendment.
The City's ordinance prohibits the parking of mobile billboard advertising displays on city streets or land, but exempts authorized emergency vehicles and construction-related vehicles. The stated purpose of the City's ordinance is "to protect the health, safety, and welfare of the citizens of the City." The plaintiff uses vehicles and trailers to display mobile billboards and, on various occasions, the City has impounded his vehicles under the ordinance. The plaintiff alleged that in adopting the exception for certain vehicles, the City had expressed a preference for certain speakers, and therefore its ordinance was regulating speech based on content.
Under the First Amendment, content-based regulations — those that regulate speech based on the message it conveys — are prohibited unless they pass strict scrutiny, meaning the government must prove that the regulation is narrowly tailored to serve compelling government interests. (See the 2015 decision in Reed v. Town of Gilbert) The U.S. Supreme Court has noted that "speaker-based regulations" are often "content-based regulations in disguise."
In Boyer, the Ninth Circuit noted that the City's ordinance was not content-based on its face, since the exemption applies to categories of vehicles, rather than the content of the advertising. However, the court explained that, given the stated purpose of the ordinance (to protect the health, safety and welfare of residents), the exemption for emergency vehicles and construction-related vehicles was logical only if the City assumed those types of vehicles were "more likely to display messages related to public health, safety, and welfare than nonauthorized vehicles." The Ninth Circuit held that, because the ordinance exempts certain vehicles based on the likely content of their speech, in enacting the ordinance, the City had made a "content-based choice that triggers strict scrutiny."
The court explained that, even though the ordinance seemed reasonable and prudent, any ordinance that allows some messages, but not others, based on content, must be reviewed under the strict scrutiny standard. The case was returned to the district court so that the plaintiff's claims can be evaluated under the correct standard.
This case is an important reminder for local agencies that any speaker-based preferences, even when reasonable and prudent, may constitute content-based regulation, and therefore trigger strict scrutiny, requiring a much stronger justification by the agency. Agencies should review their sign and advertising ordinances to determine if any speaker preferences or other content-based regulations exist, and evaluate whether they would stand up against strict scrutiny.
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